In addition to tracking regulatory information, it is also important to understand how regulatory advocacy is different from legislative advocacy, and how to adjust your regulatory strategy to reflect that reality. You can get tips on tracking regulation here. Here are some tips for regulatory advocacy:
1. Regulators know more than Legislators
Legislators are an inch deep and a mile wide. They need to cover a lot of issues, and rarely are an expert in any of them - unless their day job or previous job is in that field. With legislators, the advocates are often the experts in the room, and can influence through meetings, phone calls and letters and feel safe sending as many meetings, calls and emails talking about how important the issue is to their constituents (the people that keep them employed).
Regulators, on the other hand, are experts in the field. They are likely to know as much, if not more than your advocates. And your messaging needs to reflect that. Focus on and cite specific points of the law or the code and tell the regulators specifically why the language needs removed or improved. Be as specific as possible. Make recommendations for changes if you have them. Rounding up lots of advocates doesn't matter as much with regulators as it does with legislators, because regulators need to address every point that comes in - on the record.
2. Do Not Miss The Comment Period
I cannot stress this enough. Comment periods are hard deadlines and agencies are bound by law to address all substantive comments made during the comment period. However, if your comments come in late, there is nothing to force an agency to address your comments, regardless of how important or impactful those comments are.
3. Even Final/Permanent Rules are not permanent
Nearly all rules have a built-in sunset or rule review schedule. That means rules are reviewed regularly, often every three to seven years. These rules reviews should be part of the regulatory schedule or regulatory calendar. If you need to proactively change a rule, the rule review period is the best time to address it because you know the code is going to be “open.”
4. It is always easiest to change sections of the regulatory code when that section is “open”
The regulatory code is considered “open” when it is under review for any reason - whether it is because there has been a notice of proposed rulemaking or because it is up for its regularly-scheduled regulatory review. Rule reviews consider the entire section. Some states have formal hearings, most, at a minimum, request comments. But, even if it is a rule-change that is not necessarily looking to change a section that impacts you, your clients, or your issue, you can still comment on your particular section or issue. Agencies have to address every substantive comment, and while the answer might be that a separate rulemaking notice must be filed, it is easier to get their attention to your issue when they are focused on the section is “open.”
5. Stakeholders (i.e. the public) can always petition agencies to change the code
While often rejected, constituents and state residents can always petition the state or Federal government requesting regulatory changes.